Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 10

HCA/2014/5247/XC

Lord Justice Clerk

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

ALLAN MICHAEL CAREY

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Jackson QC, CM Mitchell; John Pryde & Co SSC          

Respondent: Brown QC AD; the Crown Agent

2 February 2016

Introduction
[1]        On 19 November 2014, at the High Court in Glasgow, the appellant was convicted as follows:

“(4)      on 26 October 2013 at 36 Parkend Gardens, Saltcoats you ... did assault Samuel Johnston ... and did repeatedly punch him to the head and body and did strike him on the chest with a knife ... and you did kill him”.

 

A co-accused, Sean (known as Stuart) McCulloch, was convicted of murder.  The libel against a third accused, Fergal Morgan, was withdrawn.  On 11 December 2014, the appellant was sentenced to 3 years detention.

[2]        The appeal raises three points.  The first is whether text messages, which contained partly erroneous admissions, provided a sufficiency of evidence when combined with other facts and circumstances said to amount to corroboration.  The second is whether, even if there were a sufficiency, no reasonable jury could have convicted on the basis of that evidence.  The third is whether the trial judge erred in his directions to the jury about what was capable of amounting to corroboration of the texts.

 

Res Gestae
[3]        The Crown case against the appellant was ultimately based on his art and part guilt, along with the principal actor Mr McCulloch, who, it was eventually agreed, had delivered the fatal stab wound.  The trial judge describes the evidence against Mr McCulloch as overwhelming, although he provides little elaboration of this.  No witness spoke to Mr McCulloch delivering the blow, or even being in possession of a knife in the flat at the material time.  However, he was seen on CCTV disposing of a knife over a wall near the locus.  His DNA was found upon it, along with the deceased’s blood, which was in a pattern indicating its use as the murder weapon.

[4]        The background was that the three accused, the deceased and his brother Ross were, along with others, at a relatively small party at the home of a young female, LC.  The locus was a second floor flat in Saltcoats.  The trial judge reports that LC had said that she had been in her bedroom talking to a young male, MM, when she heard a loud bang caused by someone kicking a door.  She had asked the party goers to leave, but had been ignored.  The males were in a “rabble”.   Ross was sitting on a sofa with blood on his face.  LC had taken hold of Mr McCulloch.  Mr McCulloch had lunged at the deceased shortly before someone had said that he had been stabbed.  At one point in her evidence, LC had said that the appellant had stormed back into the flat in a rage just before the stabbing, although she later said that that might have happened earlier or later.  After the stabbing, she described Mr Morgan as saying “F ... this” and all three accused then leaving. 

[5]        There was a transcript of MM’s testimony.  MM had been talking with LC in her bedroom when he heard someone kicking something.  People started arguing.  Another young female, ND, was complaining about someone stealing her bottle of vodka.  Fighting broke out.  After he had taken ND to LC’s bedroom to calm her down, MM had seen the deceased in a wounded state, walking from the kitchen to the livingroom.  He then saw both Mr McCulloch and Mr Morgan coming from the kitchen and running out of the front door of the flat.  However, his testimony immediately changed to seeing “they two running past my field of view out the door, and then ... [the deceased] walked out of the kitchen” with “blood coming from his chest”.  The deceased walked into the livingroom and fell to the floor.  MM looked into the kitchen and saw a knife on the floor.  RaW, the deceased’s girlfriend, had then come back into the flat.

[6]        Under cross-examination and with reference to a police statement, MM testified that originally, before the stabbing, all three accused had been ushered out of the flat, but Mr McCulloch and Mr Morgan had walked back in.  RaW had gone outside and had not returned at this point.  The trial judge reports that, having been referred to his police statements, MM had said that he had seen all three accused running to the front door and leaving at a point after the deceased had been injured.  However, this summary is not borne out by the transcript of MM’s testimony.

[7]        There was a transcript of the testimony of RW, another young male.  He said that ND had accused Mr McCulloch of stealing her drink.  A general argument had broken out.  Someone had kicked a door.  LC told people to stop shouting.  She asked Mr McCulloch and Mr Morgan, along with the deceased and his brother, to leave.  They did not listen.  The appellant and Ross had been in the hallway.  There was an argument about a bag, which the deceased was trying to remove from Mr McCulloch.  They were jostling with each other.  Mr McCulloch had squared up to the deceased and they had gone head to head with each other.  They were punching each other.  RW and Ross had tried to split them up, but Mr Morgan and the appellant had started fighting with them.  The appellant had punched Ross, who stumbled onto the couch.  The deceased, his brother, Mr McCulloch and the appellant were all fighting.  All three accused had left.  The deceased had followed them.  RW had gone into the livingroom.  The deceased had walked back in, having been stabbed.  Two people had then left the flat, with the appellant being the last to go at or about the time when the deceased was collapsing to the floor.  The appellant had shouted in a panic, as though something had happened, “Let’s go”.  The appellant ran from the flat.  He was the last to leave.

[8]        Ross Johnston could, he said, remember very little, other than seeing the appellant and Mr Morgan leaving not long after his brother had been stabbed. 

[9]        RaW, the girlfriend of the deceased, described Mr McCulloch playing with kitchen knives during the course of the party.  After the argument had started, she had seen Ross injured and Mr McCulloch and the appellant leaving the flat.  She had followed them out.  According to RaW, the appellant had not returned to the flat, although Mr McCulloch had done so and had later exited with Mr Morgan, saying “I’ve just stabbed some c..t”.  Her evidence about the appellant not returning to the flat was contradicted by, amongst others, a downstairs neighbour.

[10]      TD spoke to an argument between the appellant and Ross.  There was shouting about a bottle of vodka, which ND thought Mr McCulloch had in his bag.  LC had wanted the boys to leave.  They did not.  They started fighting.  The appellant was angry.  He joined in with everybody else and was hitting anybody, just like they all were.  Ross was being punched by a number of people, including the appellant.  He had been on a couch in the livingroom.  The three accused had all left the room.  The deceased had left the room.  He had come back 2 or 3 minutes later, fatally injured.  TD had run out and downstairs, where she found RaW.

[11]      The former co-accused, Mr Morgan, described an argument between LC and ND about a door being slammed.  Ross and the appellant were bickering.  ND was complaining about her drink being stolen.  Ross attempted, but failed, to hit the appellant.  The appellant had knocked Ross out.  The deceased and Mr McCulloch had been arguing about a bag with stolen drink.  They had started wrestling with it.  The deceased had noticed his brother’s injuries and had tried to hit Mr McCulloch.  RW was trying to split them up.  Mr Morgan had pushed the appellant and Mr McCulloch towards the door, but they were trying to get back in.  They were angry and tried to push past him.  Mr Morgan had decided to leave.  He went downstairs, followed by the appellant and Mr McCulloch.  The appellant said that he had “bottled” wee Ross.  In the course of their walk away from the flat, Mr McCulloch had two knives.

[12]      All of this was said by the trial judge to demonstrate a very close association between the appellant and Mr McCulloch just before, and shortly after, the stabbing.  Both were also seen on CCTV when Mr McCulloch had disposed of the murder weapon.  Both had taken refuge together in the house of JS in the early hours of the morning.  It was the appellant who had telephoned the hospital and asked after the deceased. 

[13]      The appellant did not give evidence.  On 27 October 2013 he had been interviewed by the police.  He had admitted punching Ross, but maintained that he had left the flat with Mr Morgan at that point.  Mr McCulloch had later come down the stairs saying that he had stabbed “him”.  He admitted seeing a block of knives in the kitchen.  The day after his interview, he had provided a voluntary statement in which he had again maintained that he had left the flat after punching “his pal” Ross.  He had been sitting at the bottom of the close speaking to RaW when Mr McCulloch had come running down the stairs shouting “I’ve just stabbed him”.  He had walked away with Mr McCulloch, who had wanted to get rid of the knife “he had taken from the kitchen”.  He had gone with the other two accused to JS’s house and stayed there for an hour or so.  He had tried contacting “everybody”, but had learned at about 6.30am that the deceased had died.

 

The texts
[14]      The foundation of the case against the appellant consisted of two text messages that he had sent after the event, viz:

“We ended up stabbing Sam and smashing f..k out o’ wee Ross.  Don’t say anything at all, but madness.  Ha, ha.”  (The trial judge erroneously reported the use of the word “slashing” rather than “smashing”).

 

and

            “Me and Stu [McCulloch] done in Sam J last night.  I stabbed him twice”.

 

The trial judge describes these texts as amounting to a clear acknowledgement that the appellant had joined in the fatal attack, even if his claim to have stabbed the deceased had either been a false boast or a mistake about whether he had actually hit the deceased.

 

The Judge’s Charge
[15]      The judge gave the jury the standard directions on art and part guilt.  He explained in particular that, where it was established that one person had stabbed the victim, another could be responsible if he participated in the attack knowing that a knife was to be, or had been, used.  He put it slightly differently in stating that an accused could be guilty of murder on an art and part basis where he “actively associates himself with a common criminal purpose which is, or includes, the taking of human life, or carries that obvious risk”.  He went on to say that, even if there was a joint attack, where the “main man went way over the top” while the other did not, one could be guilty of murder and the other of culpable homicide.  He described the evidence against the appellant as “thin”.  However, he started with the texts.  He directed the jury that they required, first, to interpret the message “Me and Stu done in Sam J last night”, followed by the reference to a stabbing, as an admission of involvement in a joint attack with a knife along with Mr McCulloch, before they could convict.  It was critical, the judge said, that the text linked the appellant with Mr McCulloch in an attack on the deceased.

[16]      When he turned to the issue of corroboration, the trial judge said:

“... the fact that the person [the appellant] is said to have named is ‘Stu’ ... as the person he ‘done in Sam J’ with is relevant.  So, also, is his reference to a stabbing and his professed knowledge of where the knife came from ... [A]s far as [the appellant] is concerned, you would be entitled to say to yourselves, well, that seems right to me.  I accept the evidence showing that Stuart McCulloch is guilty ... I believe that [the appellant] is able to name him, to speak of a stabbing, and of where the weapon came from because he was involved himself.  But that ... would not be enough on its own, because ... that’s not the only possible explanation for [the appellant] knowing these things, but it is one explanation, and you’re entitled to the one you think appropriate, providing always ... that is the conclusion you are driven to ...

            There is other evidence ... that [the appellant] came back into the house just before the stabbing, that he looked very angry, the fact that he seems to have been involved in a fight just before the stabbing ... in particular with Ross ... and [the deceased] was upset about that.  There’s the evidence that he left the flat with Stuart McCulloch and all that happened in the street before ending up at [JS’s] house ...

            ... Not a single one of these other pieces of possibly corroborating evidence is impressive, damning or, of itself, conclusive of anything, but all of it, taken together, with the admission in the terms I have mentioned, could be sufficient to allow you to come to the conclusion that his admission was genuine and accurate.”

 

Submissions
Appellant
[17]      Three of the four grounds of appeal (1, 2 and 4) were argued.  The first was that the trial judge had erred in holding that the evidence was sufficient.  The alleged admissions by the appellant in the texts had been demonstrably wrong and there was no evidence which could corroborate them.  The Crown required to demonstrate that, at the time of the fatal blow, there had been a common purpose involving Mr McCulloch and the appellant.  There was no such evidence.  When the appellant purported to accept responsibility, he had made a statement which was not true.  Thus the court was left with no idea about what he had actually done to make him art and part with Mr McCulloch.  The trial judge had reported that the jury may have interpreted the texts as meaning that the appellant had tried to stab the deceased.  The Crown had explicitly refused to advance that as a possibility.  There was no basis, beyond what was said in the texts, for defining his involvement.  He had not been sentenced on the basis that he had had a weapon.  Thus the judge’s contention, that the “starting point” was the texts, was wrong because the admissions were of things which the appellant had not done.

[18]      Even if the admissions had been unequivocal and thus required very little corroboration, there was no corroboration.  The judge had regarded the evidence of the appellant’s general involvement in the fight with the deceased and his brother “just before” the stabbing and the departure of all three “shortly thereafter” and then “barging” past LC “aggressively” “just before” the stabbing, as corroboration, as were his admission in the voluntary statement that he knew where the knife had come from and his actions in disposing of the knife and seeking refuge in JS’s house.  However, the appellant’s actions after leaving the flat could not provide corroboration of his involvement with the stabbing.  These actions were understandable in the context of knowing that his friend Mr McCulloch had stabbed the deceased.  He knew that Mr McCulloch had had a knife.  It was unfair to speculate that he had seen him take it from the kitchen.  There was no evidence of him doing anything after the deceased had followed the accused out of the flat.  The cases (Docherty v HM Advocate [2010] HCJAC 31; Gardiner v HM Advocate 2007 SCCR 379 and HM Advocate v Igoe 2010 SCCR 759) cited by the trial judge about corroboration from post event behaviour were distinguishable.  All that was involved here was the appellant running away. 

[19]      The second ground of appeal was that, even if there had been a sufficiency of evidence, the verdict was one which no reasonable jury could have returned.  It was accepted that the test was a high one (Fletcher v HM Advocate [2012] HCJAC 91 at para [9]).  Nevertheless, the admission could not properly have been used as a starting point, as it was untrue.  No reasonable jury could have found corroboration in the remaining evidence.  There had been evidence that, at the time of the stabbing, the appellant had not been present, but outside the flat.  It was of note that the trial judge had reported his surprise at the verdict.

[20]      The fourth ground was that the trial judge had erred in directing the jury about corroboration.  He had advised the jury that the starting point was the admission.  He had effectively directed them to treat the admission as a self-corroborating confession. 

 

Crown
[21]      It was accepted that the admissions in the texts were fundamental.  The surrounding circumstances were supportive of the appellant’s involvement in the stabbing; acting and associating with the stabber.  RW’s evidence in particular had the appellant shouting “Let’s go” in a panic as the deceased fell to the floor.  The appellant was, according to RW, the last to leave.  The jury had been entitled to accept that evidence in preference to that placing him outside in the close with RaW.  The evidence of RW corroborated the admissions in the texts, as did that of LC about the appellant barging aggressively past her.  It was a matter for the jury to assess and accept the first parts of both texts, which were then supported by the circumstantial evidence.  It was for the jury to decide which, of possibly several, inferences to draw from that evidence (Smith v HM Advocate 2008 SCCR 255 at para [16]).

[22]      The jury’s verdict had been a discriminating one, indicating that they had reached a carefully considered view on the evidence.  It had been a reasonable one when the evidence as a whole was considered (Fletcher v HM Advocate (supra) at para [9]).

[23]      The totality of the charge had to be considered.  The admission was not a special knowledge confession, but one requiring corroboration in the conventional way.  The significant feature was the evidence, from LC, that the knife had come from a block in the kitchen and the appellant knew that, according to his voluntary statement.

 

Decision
(a)        Sufficiency
[24]      This ground of appeal is slightly misconceived as stated.  There was no real question of there being insufficient evidence against the appellant to go to the jury.  He had admitted stabbing the deceased and there was ample circumstantial evidence to provide corroboration of that admission as actor.  The testimony of RW, that he was the last to leave the scene, saying “Let’s go” just after the deceased had collapsed, would have been enough on its own to support the admission.  The submission at trial was, and is now, based on an assumption that it is accepted that Mr McCulloch delivered the fatal blow.  That assumption can now be made standing the jury’s verdict.  Notwithstanding the Crown’s position, it was not agreed, prior to the jury’s deliberations, that it was Mr McCulloch who had stabbed the deceased.  Quite the contrary, Mr McCulloch had given evidence that it was not he who had stabbed the deceased, but Mr Morgan.  The true issue is whether the judge ought to have directed the jury that, if they accepted that Mr McCulloch was the actor, there was insufficient evidence to convict the appellant art and part.  That is the question which the court will answer.

[25]      It is critical in the first place to identify exactly what has to be proved against the appellant, upon the hypothesis that Mr McCulloch was the actor, for a conviction of murder or culpable homicide to follow.  It must at least be that the appellant actively participated in an attack on the deceased which caused his death.  More, however, is required.

[26]      Formerly, when a jury deemed the use of a lethal weapon by one accused to be murderous, the question in respect of any other accused was simply whether that use was within his reasonable expectation when, or after, he participated in the attack (Docherty v HM Advocate 1945 JC 89).  If it was, he was guilty art and part in the murder (ibid, Lord Moncrieff at 95-96).  Reasonableness of an expectation could be inferred from, for example, the co-accused’s own use of a weapon or his knowledge that the eventual murderer was carrying one (ibid).  However, as it was put by Lord Moncrieff (ibid):

“If, on the other hand, they had no reason so to expect that any one among them would resort to any such act of violence, the mere fact that they were associated in minor violence will not be conclusive against them and the lethal act, as being unexpected, will not be ascribed to a joint purpose so as to make others than the principal actor responsible for the act.”

 

On that straightforward rationale, there is no room for a verdict, based upon concert, which differs from that against the actor.  If there was no concert in the murderous attack, the co-accused could, at best, be convicted of an assault.  There was no room for a verdict of culpable homicide, where the actor was convicted of murder because, it was thought, such a verdict was inconsistent with the principle of art and part guilt.  If the co-accused did not associate himself, judged objectively, with the use of lethal force, he could not be convicted of any form of homicide.

[27]      Brown v HM Advocate 1993 SCCR 382 introduced an interesting dimension to the equation.  This was that, if a co-accused had associated himself only with a non-lethal attack, he could be convicted of culpable homicide.  Notwithstanding what had previously been relatively clearly understood within the concept of art and part guilt, a person could act in concert with the principal actor yet be guilty of a lesser crime.  Although this troubling approach might have the effect of making convictions for murder art and part more difficult to prove, it opens up the prospect of a conviction for homicide where the co-accused has not associated himself with a lethal attack. 

[28]      The Full Bench in McKinnon v HM Advocate 2003 JC 29 shied away from disapproving Brown expressly, even if it commented adversely upon it (at para [22]).  As the Lord Justice General (Cullen), delivering the Opinion of the Court, said (at para [27]):

“... if the relevant concert is established, there is no separate question as to whether the individual accused had the necessary criminal intent which is required for the finding of guilt of that crime.”

 

He continued (at para [30]) by stating that:

“While the individual accused was party to a common criminal purpose with others, it was not foreseeable that the victim might sustain serious injury.   In such a case the jury might conclude, according to the part played by him or her, that he should be acquitted or should be convicted of a lesser crime than murder.”

 

However, he then postulated (at para [32]) that:

“It is for the Crown to prove in relation to each accused ... that there was a [common criminal purpose which is or includes the taking of human life or carries the obvious risk human life will be taken] and that particular accused associated himself with that purpose.  Where he is proved to have associated himself with that purpose or is proved to have participated in some less serious common criminal purpose in the course of which the victim dies, the accused may be guilty art and part of culpable homicide, whether or not any person is proved guilty of murder.”

 

[29]      There appears to be an illogicality in this approach; that a person can be art and part guilty of culpable homicide when the victim is found to have been murdered, but this is the law as it presently stands (see also Hopkinson v HM Advocate 2009 SLT 292; and more generally Leverick: The (art and) parting of the ways: joint criminal liability for homicide 2012 SLT (news) 227).  Upon that basis, which may well require to be reviewed again by the court or Parliament, if the appellant had engaged in a joint attack on the deceased, even if there was no objective basis for concluding that he ought to have had the use of a weapon in mind, he could still be convicted of culpable homicide if non-lethal violence (which by definition could not have killed the deceased) was used by him in a joint attack.

[30]      In this case there is little difficulty in holding that there was sufficient evidence that, in fact, the appellant was aware of the potential use of lethal force.  It was he who stated in the texts that “We ended up stabbing Sam ...” and “Me and Stu done in Sam J last night”.  He admitted taking part, jointly with Mr McCulloch, in a lethal attack on the deceased.  The fact, that it is accepted that he did not himself stab the deceased twice, is of little moment.  It was for the jury to decide whether this was an idle superfluous boast or a partially mistaken understanding of what had happened.  It was still a critical statement against interest providing clear evidence of art and part guilt.

[31]      In relation to corroboration, the surrounding facts and circumstances provided adequate corroboration of the admission of joint participation.  It is, of course, important to keep in mind that, in the case of an admission, what is being looked at is evidence from another source which confirms or supports, not the act of joint participation itself, but the terms of the admission (Hartley v HM Advocate 1979 SLT 26).  Such corroboration can come from special knowledge about the commission of the crime, including the provenance of the murder weapon, or its aftermath or from circumstances demonstrating that the appellant was involved in a joint attack.  In that respect, it could not come from the appellant’s own statements about the knife, since that would emanate from the same source as the texts (ie the appellant).

[32]      Suffice to say for present purposes, there was sufficient confirmation or support for the contention that the appellant had engaged in a joint attack with Mr McCulloch from LC’s testimony that he (the appellant) had re-entered the flat in a temper intent on doing something to the occupants (see also Mr Morgan) and remained there until after the stabbing (LC, MM and RW) when he said “Let’s go” in a panic (RW).  He continued in association with Mr McCulloch thereafter when he (McCulloch) disposed of the knife.  He sought refuge with him in the house of a third party, presumably to avoid ready detection, and took it upon himself to enquire after the deceased at the hospital.

 

(b)        Reasonableness
[33]      The task facing an appellant, in demonstrating the unreasonableness of a jury’s verdict, is significant, once a sufficiency of evidence has been established (Dreghorn v HM Advocate 2015 SCCR 349, LJC (Carloway) at paras [31] and [32] following Geddes v HM Advocate (No.2) 2015 JC 229, LJC (Carloway) at para [4] citing AJE v HM Advocate 2002 JC 215, LJC (Gill) at para 30).  It is only in “the most exceptional circumstances that an appeal on this ground will succeed” (ibid, citing Harris v HM Advocate 2012 SCCR 234, Lord Bonomy at para [67]).

[34]      The appellant has rightly drawn the court’s attention to the trial judge’s expression of surprise at the verdict.  Yet the judge did not regard it as an unreasonable one.  There was a clear admission of involvement in the fatal attack and proof aliunde of that involvement.  It is not possible to sustain a submission of unreasonableness in these circumstances.  The co-existence of verdicts of murder and culpable homicide in respect of a single stab wound from a known assailant has already been commented upon; but it was a verdict which the jury were entitled to return standing the judge’s directions, which accorded with the current state of the law.

 

(c)        Misdirection
[35]      The significance of a self-corroborating confession is that it is corroborated solely by way of confirmation of the truth of its contents in circumstances in which the jury hold that the only reasonable explanation for an accused knowing of these contents is because of his involvement in the crime (Wilson v HM Advocate 1987 SCCR 217, LJG (Emslie) at 222).  Although there were elements of the appellant’s admissions, including the source of the knife, which was proved to be the block in the kitchen, which might in other circumstances have been used to demonstrate special knowledge, that was not necessary in this case, where there was other corroborative material.  Had the judge given the jury a direction that the texts and the appellant’s interview and voluntary statement provided a self-sufficient admission capable of corroborating itself by virtue of their coincidence with proved fact, such a direction might have been open to criticism, were it to have been accepted that Mr McCulloch had admitted stabbing the deceased to the appellant as he exited the close.  The judge did not give such a direction.  On the contrary, he specifically told the jury that the contents of the texts and the appellant’s reference to the knife “would not be enough on its own”.  It was that evidence, coupled with the testimony of other witnesses speaking to the appellant’s actions in the flat and thereafter, that provided a sufficiency in the sense that the combination could be taken as demonstrating that the admissions of involvement were true.  Such a direction, whilst perhaps cautious, cannot be described as erroneous from the appellant’s standpoint.

[36]      The appeal must be refused.